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Q: I was named an executor of my uncle’s estate and learned that some assets require probate. Does the process take a long time?
It’s never easy to lose a loved one, and taking on the role of an executor can be a tremendous responsibility. However, many executors are surprised to learn just how involved an estates proceeding can be. While no two estates are the same, especially when the courts are involved, understanding the different steps of the process can give you an idea of what to expect and how significant your time investment may be.
What Is Probate?
Probate, from the Latin word meaning ‘to prove,’ is the legal mechanism ‘proving’ a deceased person’s Last Will and Testament is genuine. Probate is necessary for the executor named in the Will to collect estate assets, settle debts, and make distributions in accordance with the terms in the document. However, it is only needed when the deceased person held assets solely in his name, without designated beneficiaries listed. Some common examples include individual bank accounts or investments, real estate owned solely or as a “tenant-in-common,” automobiles, or safe deposit boxes. An estates attorney can help you determine whether the probate process is needed for certain assets, if you are unsure.
Do You Need an Attorney for Probate?
If you are an executor of an estate where probate is needed, it is highly recommended that you retain an attorney to assist you in preparing the required Petition for Probate. That Petition must be filed, along with an original Will and death certificate, in the Surrogate’s Court of the county where the deceased person lived prior to his passing. That form is required to include certain information about the deceased person, the beneficiaries, and the next of kin, who are all entitled to legal notice of the proceeding. Your attorney may also recommend that certain affidavits are prepared to supplement the filing. The process of preparing these documents varies based on the circumstances of the estate, and who the closest next of kin are.
How Next of Kin Affect the Timeline
Regardless of whether they inherit under the estate or not, the next of kin are considered necessary parties who must be given an opportunity to consent or object to the Will being admitted. If the next of kin are cooperative and do not intend to contest the Will, these necessary parties can sign a “Waiver of Process and Consent to Probate” to speed up the process. However, without these Waivers, the Court must issue a document called a citation, with a date for each party to appear. Time spent properly identifying, serving, and addressing the interest of these parties can significantly protract the probate proceeding.
How Long Does It Take for an Executor to Be Appointed?
Typically, a Court responds to probate documents within eight to twelve weeks of the initial filing, barring exigent circumstances, but this timeline may be extended based on the Court’s backlog of cases. The timeframe from there is dependent on whether a citation is required or whether all necessary parties consent. In short, the probate process can take several months or over a year, depending on how involved the estate is.
What Happens After the Executor Is Appointed?
Once appointed as fiduciary, the executor must marshal all assets, coordinate with creditors, settle outstanding estate debts, and account to the beneficiaries. New York law mandates a seven-month window from the date the executor is appointed for creditors to bring a claim. Accordingly, distributions are typically not allowed during that seven month period. However, the process of marshalling assets often takes longer than seven months, especially when real estate is involved or appraisals need to be done.
How Long Estate Administration Take?
Overall, estate administration can take as few as nine months or up to two years (or more), depending on the circumstances of the estate, the necessary parties, and the nature of the assets. To ensure that your estate moves as swiftly through the courts as possible, it is highly recommended that you work with an experienced estate attorney familiar with the Surrogate’s Court system.
By Britt Burner, Esq. and Frank Oswald, Esq.
Britt Burner, Esq. is the Managing Partner at Burner Prudenti Law, P.C. focusing her practice areas on Estate Planning and Elder Law. Frank Oswald, Esq. is an associate attorney at Burner Prudenti Law, P.C. focusing his practice areas on Trusts and Estates. Burner Prudenti Law, P.C. serves clients from New York City to the east end of Long Island with offices located in East Setauket, Westhampton Beach, Manhattan and East Hampton.
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